Fair Trading v Owners Corporation Strata Plan 46789 [2004] NSWSC 443

Fair Trading v Owners Corporation Strata Plan 46789 [2004] NSWSC 443

The Tribunal's finding that the correspondence constituted an agreement as to liability for major structural defects went beyond what could be supported by the letters; while there was agreement to confine the claim to certain defects and extend time for notification, this did not amount to full acceptance of liability and did not preclude the plaintiff from relying on all scheme defences. The Tribunal's decision was therefore in error as to the legal effect of the agreement.

Jurisdiction
Australia
Judgment Date
25 May 2004
Procedural Posture
Appeal and Judicial Review / Judgment on Appeal and Judicial Review, Equity Division, Supreme Court of NSW
Outcome
Appeal allowed; Tribunal's order refusing stay set aside; matter remitted for rehearing; costs awarded to plaintiff
Legal Topics
['compromise Agreements' 'jurisdiction of Tribunal' 'contract Formation' 'appeals on Questions of Law' 'building Insurance Schemes']
['contracts' 'administrative Law' 'building Law'] ['compromise Agreements' 'jurisdiction of Tribunal' 'contract Formation' 'appeals on Questions of Law' 'building Insurance Schemes']

Case Brief

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Procedural Posture

Appeal and Judicial Review / Judgment on Appeal and Judicial Review, Equity Division, Supreme Court of NSW

Legal Issues

  1. 1 ['Whether correspondence between parties constituted an agreement binding as to liability for major structural defects' 'Whether the Tribunal erred in law in finding a legally binding agreement on liability existed' "Whether the plaintiff's actions were ultra vires due to failure to consider all relevant scheme provisions"]

Ratio Decidendi

The Tribunal's finding that the correspondence constituted an agreement as to liability for major structural defects went beyond what could be supported by the letters; while there was agreement to confine the claim to certain defects and extend time for notification, this did not amount to full acceptance of liability and did not preclude the plaintiff from relying on all scheme defences. The Tribunal's decision was therefore in error as to the legal effect of the agreement.

Court Disposition

Appeal allowed; Tribunal's order refusing stay set aside; matter remitted for rehearing; costs awarded to plaintiff

Orders

  • ['That the determination of the second defendant to deny the plaintiff stay on 16 October 2003 in the proceedings between the first defendant and the plaintiff in the Consumer Trader and Tenancy Tribunal of New South Wales be set aside.' "The matter is remitted to the Consumer Trader and Tenancy Tribunal of New...